This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2013AP551-CR

Cir. Ct. No.2009CF116

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT III

State of Wisconsin,

Plaintiff-Respondent,

v.

Craig F. Ahlman,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for St. Croix
County:ERIC J. LUNDELL, Judge.Reversed and cause remanded with directions.

Before Hoover, P.J., Mangerson and Stark, JJ.

¶1PER CURIAM. Craig Ahlman appeals a
judgment of conviction for possession of child pornography, contrary to Wis. Stat. § 948.12(1m), and an
order denying his postconviction motion.[1]We reverse because the circuit court failed
to establish a factual basis for Ahlman’s guilty plea.Ahlman has therefore demonstrated a manifest
injustice and is entitled to plea withdrawal.

BACKGROUND

¶2A conviction for possession of child pornography under Wis. Stat. § 948.12(1m)
requires proof that the defendant possessed a “photograph … or other recording
of a child engaged in sexually explicit conduct.”[2]SeeWis. Stat. § 948.12(1m)(b).“Sexually explicit conduct,” as it relates to
§ 948.12(1m), requires that the material depict very specific types of
acts, like intercourse, masturbation, or “lewd exhibition of intimate
parts.”See Wis. Stat. § 948.01(7).

¶3Eight images of children were discovered on Ahlman’s computer
while police were investigating an alleged sexual assault.[3]The statement of probable cause attached to
the complaint indicated that investigators found a file “depicting nude
females, including a nude child.”Two
other files depicted “a female child in a sexualized pose.”A fourth file showed “a pubescent female
torso including breasts.”“[T]wo nude
females, one of which is a female child yet to develop breasts or pubic hair,”
were shown in four other files.

¶4Ahlman reached a comprehensive plea agreement with the State
resolving two counts of sexual assault of the same child under the age of
thirteen and three counts of possession of child pornography.Alman agreed to plead guilty to one count of
possession of child pornography; he would be immediately convicted of that
charge.He also agreed to plead guilty
to one count of sexual assault of a child, but, pursuant to a deferred judgment
agreement, entry of that judgment of conviction would be deferred for fifteen
years and dismissed on completion of stated requirements.The remaining counts would be dismissed
outright.

¶5At the plea colloquy, the court did not ask Ahlman whether he
understood what “sexually explicit conduct” meant.Ahlman was shown a copy of the Information,
which also did not elucidate the meaning of the phrase.The court read Ahlman the elements of
possession of child pornography, which did not include the definition of
“sexually explicit conduct” contained in Wis.
Stat. § 948.01(7).The court
then asked, “Do you understand the charge generally?”Ahlman replied in the affirmative.The court also asked whether Ahlman understood
the elements of possession of child pornography.Ahlman again responded in the
affirmative.

¶6The court realized it was required to establish a factual
basis supporting Ahlman’s plea.Defense
counsel consented to the use of the complaint’s statement of probable cause for
that purpose.The State requested the
court also consider a therapy report authored by Dr. Ron McGuire as a
foundation for the plea.Defense counsel
agreed, stating that admissions Ahlman made to McGuire “clearly support[ed]”
the plea.Both sources, along with
Ahlman’s acknowledgment of the offense generally, served as the factual
predicate for Ahlman’s plea. The allegedly
pornographic images were not attached to either the complaint or McGuire’s
report, and it does not appear the circuit court personally viewed them.

¶7The State argued for a lengthy prison term at
sentencing.The prosecutor described the
images taken from Ahlman’s computer as depicting “children,” and emphasized
that Ahlman had admitted to repeatedly viewing “child pornography.”Defense counsel argued for probation
conditioned upon local jail time.Counsel
emphasized that the images, which he viewed, were “just plain images, nothing
sexual, no sexual activity or anything.”The court ultimately was persuaded by the State and sentenced Ahlman to
a twenty-year term of imprisonment, consisting of ten years’ initial
confinement and ten years’ extended supervision.

¶9To accept a plea, a circuit court is required to establish a
sufficient factual basis for the defendant’s guilt.See Wis. Stat. § 971.08(1)(b) (court
must make “such inquiry as satisfies it that the defendant in fact committed
the crime charged”).“A factual basis
may be established through testimony by witnesses, reading of police reports or
statements of evidence by the prosecutor.”White v. State, 85 Wis. 2d 485, 490, 271 N.W.2d 97
(1978).The court may examine the
defendant regarding his actions, but the guilty plea, without more, is
insufficient to establish the elements of the crime.Id. at 490-91.

¶10Based on the probable cause statement’s description of the
images, the only conceivable way the images depicted “sexually explicit
conduct” is if the minors depicted were engaged in the “lewd exhibition of
intimate parts.”See Wis. Stat. § 948.01(7).[5]If they were not, the images did not rise to
the level of child pornography.See United
States v. Griesbach, 540 F.3d 654, 655 (7th Cir. 2008) (definition of
“sexually explicit conduct” draws line between child pornography and child
erotica).

¶11There is no one definition of “lewd.”State v. Petrone, 161 Wis. 2d
530, 561, 468 N.W.2d 676 (1991), overruled
on other grounds byState v. Greve, 2004 WI 69, ¶31 n.7,
272 Wis. 2d 444, 681 N.W.2d 479.An
image must visibly display the child’s genitals or pubic area, but mere nudity
is not enough.Id.The child must be posed as a sex object, with
an “unnatural” or “unusual” focus on the genitalia.Id.A fact-finder must use common sense when determining whether an image is
pornographic or innocent.Id.
at 561-62.

¶12Given this rather amorphous standard, it is odd that the State
apparently never offered the images into evidence during Ahlman’s
prosecution.Nor did the circuit court
request to see them during the plea hearing.They are not in the record on
appeal.Instead, the court primarily
relied on law enforcement’s bare descriptions of the images as variously
depicting a “nude child,” a “female child in a sexualized pose,” a “pubescent
female torso including breasts,” and “a female child yet to develop breasts or
pubic hair.”

¶13Reliance on such skeletal statements about what was in the
images is obviously problematic.In any
prosecution for child pornography, “the essential evidence is the pornography
rather than a verbal description of it ….”Griesbach, 540 F.3d at 654.In Griesbach, the court found a twenty-word description of an
image practically worthless, and barely sufficient to support the issuance of a
search warrant for child pornography.[6]Id. at 656.Without personally viewing the images or
eliciting a highly detailed description of the images from the State or Ahlman,
there was an insufficient factual basis for the plea.

¶14This is true even though two of the images, in the
investigator’s judgment, depicted “a female child in a sexualized pose.”A “sexualized pose” can mean any number of
things, and need not rise to the level of “lewd exhibition of intimate
parts.”For example, in Griesbach,
540 F.3d at 655, the government’s affidavit described images investigators had
found on the internet and traced to the defendant.One of the images showed a prepubescent
female posing with her top pulled up to expose her breasts, and a second showed
a minor female in a standing pose to expose her full body.Id.The government conceded—and the court implicitly agreed—that these
images were mere “child erotica,” and could not establish probable cause to
search for child pornography.Id.at 655, 657.

¶15McGuire’s report does not save Ahlman’s plea.According to the report, the images “are basically
stills of young girls and … there is no sexual activity, penetration or other
activities shown.”Ahlman agreed with
that description and said the girls were in a “posing posture,” but gave no
further details.Although McGuire found
that “there certainly was possession of child pornography,” it is not evident
McGuire was aware of, or understood, the “sexually explicit conduct” component
of the offense.McGuire’s finding appears
to be solely based on Ahlman’s acknowledgment that he possessed images he
believed were illegal.[7]

¶16Further, Ahlman’s generic admissions of guilt are insufficient
to establish a factual basis for his plea.See White, 85 Wis. 2d at 490-91.At the plea hearing, Ahlman acknowledged that
he understood the “charge generally” and the elements of child
pornography.However, he was never asked
to describe the images, or asked whether the images depicted “sexually explicit
conduct.”See id. at 490 (court
may examine the defendant regarding his or her actions to establish factual
basis for plea).We are left with the
apprehension that Ahlman possessed images he believed were illegal, but in fact
did not depict “sexually explicit conduct.”The factual basis requirement is designed to insulate a defendant in
precisely these circumstances.See State
v. Thomas, 2000 WI 13, ¶14, 232 Wis. 2d 714, 605 N.W.2d 836
(factual basis requirement protects a defendant “‘who is in the position of
pleading voluntarily with an understanding of the nature of the charge but
without realizing that his [or her] conduct does not actually fall within the
charge.’” (quoting White, 85 Wis. 2d at 491)).

¶17However, the circuit court’s failure to establish a factual
basis at the plea hearing is not automatically fatal to the subsequent
proceedings.A defendant who seeks to
withdraw a guilty plea after sentencing must show, by clear and convincing
evidence, that withdrawal is necessary to correct a manifest injustice.Thomas, 232 Wis. 2d 714,
¶16.“The ‘manifest injustice’ test
requires a defendant to show ‘a serious flaw in the fundamental integrity of
the plea.’”Id. (quoting State
v. Nawrocke, 193 Wis. 2d 373, 379, 534 N.W.2d 624 (Ct. App. 1995)).“[I]f a circuit court fails to establish a
factual basis that the defendant admits constitutes the offense pleaded to,
manifest injustice has occurred.”Id.,
¶17.

¶18In applying the manifest injustice test, the issue is no longer
whether the plea should have been accepted, but whether the plea should be
withdrawn.State v. Cain, 2012 WI
68, ¶30, 342 Wis. 2d 1, 816 N.W.2d 177.While a plea might be invalid at the time it was entered, as was the
case here, it may be inappropriate, in light of later events, to allow
withdrawal.Id.Thus, we must look at the totality of the
circumstances to determine whether a factual basis for the plea has been
established.Thomas, 232 Wis. 2d
714, ¶18.The totality of the
circumstances includes the plea hearing record, the sentencing hearing record,
and the defense counsel’s statements concerning the factual basis presented by the
State.Id.

¶19Here, the record subsequent to the plea hearing bolsters our
belief that Ahlman must be permitted to withdraw his plea.Ahlman described his offense to the
presentence investigation report author as possession of “several nude underage
girls found on computer equipment.”Ahlman
affirmed that the deficient probable cause statement was “generally
accurate.”The PSI report also relied on
Ahlman’s insufficient descriptions of the images to McGuire.And, at sentencing, defense counsel
characterized the images as “just plain images, nothing sexual, no sexual
activity or anything.”Nothing in the
subsequent record documents establishes that any of the images contained “lewd
exhibition[s] of intimate parts,” or any other form of “sexually explicit
conduct.”

¶20We therefore conclude that, on remand, Ahlman must be permitted
to withdraw his plea.He has established
a manifest injustice: namely, the record is devoid of a factual
basis for finding him guilty of possession of child pornography.

By the Court.—Judgment and order
reversed and cause remanded with directions.

This
opinion will not be published.See Wis.
Stat. Rule 809.23(1)(b)5.

[1] All
references to the Wisconsin Statutes are to the 2011-12 version unless
otherwise noted.

[2]Wisconsin Stat. § 948.12(1m) was
amended after Ahlman’s alleged offenses, in 2011.See 2011
Wis. Act 271, § 6.These
amendments, which clarified the manner of commission and scienter elements of
the offense, are not relevant to the present appeal.

[3] At
sentencing, the State represented that nine images were discovered, but the probable
cause statement discusses only eight.

[4] Ahlman
also asserted, as he does on appeal, that a “new factor” entitles him to
sentence modification, and that his attorney was ineffective.Because we conclude that Ahlman is entitled
to plea withdrawal, we need not address these issues.See State v. Castillo, 213 Wis. 2d
488, 492, 570 N.W.2d 44 (1977) (appellate courts should decide cases on
narrowest possible grounds).

[5] Although
some images apparently included more than one female, there is absolutely
nothing in the record to suggest the minors were engaged in any form of sexual
intercourse.Nor is there anything
suggesting the images depicted other forms of sexually explicit conduct, such
as bestiality, masturbation, or “sexual sadism or sexual masochistic abuse.” See Wis. Stat. § 948.01(7).

[6] Indeed,
the warrant likely would have been unlawful had it been solely supported by law
enforcement’s brief description of the image.The court placed great emphasis on law enforcement’s averment that the
picture was from a known series of pornographic images.See United States v. Griesbach, 540
F.3d 654, 656 (7th Cir. 2008) (“The fact that the third image was part of a
known series of pornographic images is especially telling.”).This supported a strong inference that
additional, pornographic images would be found during the ensuing search.Id. at 656-57.

[7] It
does not appear McGuire saw the images, either, as his characterization of the
images was based on representations made by Ahlman’s attorney.